Citation NR: 9622791
Decision Date: 08/08/96 Archive Date: 08/16/96
DOCKET NO. 93-09 420 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased rating for bilateral hearing
loss, currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from July 1965 to April
1969. This matter comes to the Board of Veterans' Appeals
(the Board) from a December 1991 rating decision of the
Regional Office (RO) which increased the rating assigned the
veteran's service-connected bilateral hearing loss from
noncompensable to 10 percent. When this case was before the
Board of Veterans' Appeals (the Board) in February 1995, it
was remanded for additional development of the evidence.
Based on the findings of a Department of Veterans Affairs
(VA) examination in July 1995, the RO, by rating action in
January 1996, assigned a 50 percent evaluation for bilateral
defective hearing, effective from July 1991. The veteran
continues to express disagreement with the assigned rating.
It does not appear from the evidence that the RO has
considered the issue of entitlement to an extraschedular
rating under 38 C.F.R. § 3.321(b)(1) (1995) for the service-
connected issue on appeal. Under Fisher v. Principi, 4
Vet.App. 57, 60 (1993), the question of extraschedular
consideration is a separate issue from the issue of the
appropriate schedular rating to be assigned. Further, under
Floyd v. Brown, 9 Vet.App. 88 (1996), although the Board may
be obliged to raise the issue of potential extraschedular
consideration, based upon a liberal reading of the documents
and oral testimony of record, the Board cannot make that
determination in the first instance. Accordingly, the
question of potential extraschedular consideration for the
service-connected disability pertinent to this appeal is
referred to the attention of the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a higher rating is warranted for
his bilateral hearing loss. He asserts that the VA
audiometric test occurs in a controlled setting and does not
adequately reflect daily life. He argues that his private
physician advised him that he would be a hazard to himself
and others in a factory setting, and that hearing aids would
not help him.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the weight of the evidence is
against the claim of entitlement to an increased rating for
bilateral hearing loss.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran has Level VIII hearing in each ear.
CONCLUSION OF LAW
A rating in excess of 50 percent for bilateral hearing loss
is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38
C.F.R. §§ 4.1, 4.2, 4.3, 4.7, Part 4, Code 6105 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The initial question before the Board is whether the veteran
has submitted a well-grounded claim as required by 38
U.S.C.A. § 5107 (West 5107). The United States Court of
Veterans Appeals (the Court) has held that a well-grounded
claim is one which is plausible, meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78 (1990). In this case, the veteran's statements concerning
the severity of the symptoms of his service-connected
bilateral hearing loss that are within the competence of a
lay party to report are sufficient to conclude that his claim
is well grounded. Proscelle v. Derwinski, 2 Vet.App. 629;
Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly,
no further development is required in order to comply with
the duty to assist mandated by 38 U.S.C.A. § 5107.
The service medical records show no hearing loss on pre-
enlistment examination in June 1965, and that audiometric
tests conducted in October 1968 revealed that the veteran had
a bilateral hearing loss.
Based on the in-service audiometric tests, the RO, by rating
action in May 1975, granted service connection for a
bilateral high frequency hearing loss, and assigned a
noncompensable evaluation.
In July 1991, the veteran submitted a claim for an increased
rating for bilateral defective hearing. In conjunction with
this claim, he submitted the report of an audiometric test
conducted by his private physician earlier that month.
Following that test, the examiner concluded that the veteran
had a significant hearing loss. He added that the veteran’s
hearing loss rendered him disabled from certain jobs.
On VA audiological evaluation in October 1991, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
70
95
100
LEFT
35
50
95
95
Speech audiometry revealed speech recognition ability of 68
percent correct in the right ear and 88 percent correct in
the left ear. It was indicated that the veteran had a mild
to moderate sensorineural hearing loss through 1500 Hertz,
dropping to a severe to profound high frequency sensorineural
hearing loss in the right ear, and a mild to moderate
sensorineural hearing loss through 2000 Hertz, dropping to a
profound hearing loss in the left ear.
On VA audiological evaluation in August 1993, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
40
70
90
105
LEFT
35
55
90
90
Speech audiometry revealed speech recognition ability of 60
percent correct in the right ear and 70 percent correct in
the left ear. The veteran was noted to have a mild to
moderately severe sensorineural hearing loss through 2000
Hertz with a severe to profound sensorineural hearing loss in
the higher frequencies in the right ear, and a mild to
moderate sensorineural hearing loss through 2000 Hertz with a
severe sensorineural hearing loss in the higher frequencies
in the left ear.
He was again afforded audiometric testing by the VA in July
1995. On audiological evaluation that month, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
40
70
95
105
LEFT
45
55
95
100
Speech audiometry revealed speech recognition ability of 52
percent correct in the right ear and 54 percent correct in
the left ear. It was concluded that he had a mild to
moderately severe sensorineural hearing loss through 2000
Hertz with a profound sensorineural hearing loss through the
higher frequencies in each ear. The examiner commented that
the degree of the veteran's hearing loss and poor speech
recognition ability obtained during the evaluation should
result in difficulty understanding speech in most listening
situations. Although the use of bilateral hearing aids in an
ideal listening environment would improve the veteran's
communication ability, the adverse impact on the veteran's
ability to work would not be eliminated.
As indicated earlier, based on these findings, the RO in
January 1996, assigned a 50 percent evaluation for the
veteran’s bilateral hearing loss, effective in July 1991.
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities. The VA has a duty
to acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589
(1991). These include 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40.
The requirements set forth in these regulations for
evaluation of the complete medical history of the claimant's
condition operate to protect claimants against adverse
decisions based on a single, incomplete or inaccurate report,
and to enable the VA to make a more precise evaluation of the
level of the disability and of any changes in the condition.
Schafrath, 1 Vet.App. at 593-94.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, See 38 C.F.R. §§ 4.2, 4.41 (1995), the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet.App. 55 (1994).
The severity of hearing loss disability is determined for VA
rating purposes by the application of criteria set forth in
38 C.F.R. § 4.87 of VA’s Schedule for Rating Disabilities.
Under these criteria, the degree of disability for bilateral
service-connected defective hearing is ascertained by the
application of the rating schedule which establishes 11
auditory acuity levels, ranging from Level I (for essentially
normal acuity) through Level XI (for pronounced deafness).
Codes 6100 through 6110.
The results of the various audiometric tests performed by the
VA since 1991 fail to demonstrate that the veteran's service-
connected bilateral hearing loss warrants a higher rating.
The Board acknowledges that these examinations establish that
the veteran's hearing acuity has diminished, and this is
recognized by the fact that after the most recent VA
audiometric test, a 50 percent evaluation was assigned. The
results of the July 1995 VA examination provide the findings
which are most favorable to the veteran. These findings,
however, show that the veteran has Level VIII hearing in each
ear. This corresponds to a 50 percent rating. The
assignment of disability ratings for service-connected
hearing impairment is derived by a mechanical application of
the rating schedule to the numeric designations assigned
after audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet.App. 345, 349 (1992). Thus, an increased
rating is not warranted.
The Board recognizes that the veteran questions the
practicality of the audiometric tests conducted by the VA and
asserts that they do not reflect a normal life which does not
take place in a controlled setting. However, the tests are
deemed to best reflect the veteran's organic hearing ability
for speech. There is no discretion in the application of the
rating schedule. The Board notes the comments made by the
examiner in conjunction with the July 1995 VA examination,
but the current findings support no more than a 50 percent
schedular rating.
ORDER
An increased rating for bilateral hearing loss is denied.
J. F. GOUGH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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